Rekmi Holdings vs Gagger Enterprises Pvt. Limited

S.G. Shah, J.—Admit. Learned advocate Mr. Utkarsh Jani waives service of notice of admission on behalf of respondents. Considering the facts and circumstances, appeal from order is disposed of at such admission stage itself. It has been pointed out by learned advocate Mr. Asim Pandya appearing for learned advocate Mr. Raju V. Patel for the appellants that though there is a prohibitory order against the appellants-defendants in the suit preferred by the present respondents-plaintiffs, in fact the same Court has failed to decide the application for interim relief against present respondents-plaintiffs in previous suit filed by present appellants prior to suit filed by present respondents.

Though respondent has tried to show that they have not hid such information in their suit, wherein interim relief is in their favour in impugned judgment and order, it is admitted position that in fact there are two suits between the almost same parties and almost for same subject, issue and reliefs. Thereby factually Civil Suit No. 3181 of 2013 is filed by present appellants No. 1 against the present respondent No. 2 wherein interim relief was prayed to restrain the defendants from demanding the amount of commission and royalty and thereby preventing the defendants/respondents restraining the appellant/plaintiff from using trade-mark till the final disposal of the suit. Whereas present respondent No. 2 being defendants in such previous suit has preferred Civil Suit No. 190 of 2014 with their principal being plaintiff No. 1 being respondent No. 1 herein against the appellants being firm and its partners to restrain them from using the trade-mark in question in any manner. Therefore, interim relief in both the suits is against each others.

However at present, since agreement between the parties came to an end pending this litigation, practically now appellants could not and do not want to use the trade -mark in question. Hence, learned advocate Mr. Pandya has fairly admitted this position that pursuant to agreement between the parties, now appellants cannot and do not want to utilize the trade - mark in question. Therefore, there is no need to enter into factual details so far as rights over trade - mark is concerned. Thereby interim relief prayed in previous suit No. 3181 of 2013 has become infructuous. Whereas interim relief in second suit No. 190 of 2014 needs no interference.

Thereby, the only dispute remains between the parties with reference to the rights to claim commission, royalty and damages. For the purpose, when both the suits are pending before the same Court on same issue, it would be appropriate to direct the trial Court to consolidate both the suits and hear and decide both the suits together by framing consolidated issues.

4.1 Therefore, though second suit may bar by principles of res-judicata, considering the fact that there are certain differences and changes in parties and may be in the issues, at present, without deciding such issue, more particularly when it is not raised in this appeal, it would be appropriate to dispose of this appeal with following directions:

"(1) The impugned judgment is not quashed and set aside considering the fact that now the contract period in favour of the appellants has come to an end and, therefore, appellants could not and do not want to use the trade - mark in question. However, thereby this Court does not endorse the legality and validity of the impugned order and, therefore, trial Court has to decide such suits purely in accordance with law and on merits.

(2) The parties are at liberty to take all possible defense in support of their case.

(3) Both the suits are hereby ordered to be consolidated and to be decided together as observed in this judgment.

(4) The trial Court shall decide such suits on or before 30.04.2015."

4.2 With these observations and directions appeal is disposed of. In view of order passed in main appeal, Civil Application stands disposed of accordingly.